The long-running battle between Qantas and the Transport Workers' Union (TWU) over the sacking of 1,700 ground staff at the height of the pandemic will move to the High Court in Canberra today.
Qantas will tell the High Court the COVID-19 pandemic wreaked devastating havoc on the airline's operation with an impact on revenue that cannot be overstated.
"From January 2020, Qantas progressively experienced an almost total reduction in travelling passengers and thus passenger flights on its international networks and a very significant reduction in travelling passengers … on its domestic networks," submissions to the High Court say.
Qantas said plans were made to outsource baggage handling and cleaning jobs at 10 airports to shore up its viability.
The company said its profits had plummeted by 91 per cent and it had a before-tax loss of $2.7 billion.
"Qantas had sound commercial reasons for outsourcing: it would save $100 million each year once things returned to normal," the submissions say.
But the Transport Workers' Union said Qantas moved quickly to sack the Qantas Ground Services (QGS) workers to head off any industrial action, in breach of the Fair Work Act 2009.
Under the Act, adverse action towards a worker over a workplace right is prohibited.
Qantas has taken its case to the High Court after losing twice in the Federal Court, which found the decision to outsource the jobs did breach the law.
The High Court case is focused on how the Fair Work Act should be interpreted.
Lawyers for the airline will tell the court the law only bans it from preventing an existing workplace right, not one that might be exercised in the future.
Qantas will tell the court that at the time of the sackings the workers were not engaged in exercising any workplace rights — such as holding a protected action ballot — or in a position to do that, because their enterprise agreement did not run out until later in the year.
"At 27 November 2020, affected QGS employees did not have a workplace right to organise, engage or otherwise participate in [protected industrial action]," the submissions to the High Court said.
But the Union will urge the High Court not to accept the argument.
Lawyers for the TWU say in their submissions the Federal Court did not accept the evidence of Qantas Domestic and International chief executive Andrew David, that he didn't make the decision to thwart any industrial action and was relying only on a commercial imperative.
The union's submissions to the High Court suggest a more opportunistic motive.
"The circumstances presented a unique opportunity to outsource and senior managers whom Mr David worked closely with and who recommended outsourcing were motivated by the proscribed purposes," the union submissions say.
The federal Workplace Minister Tony Burke is also hoping to intervene in the case, despite objections from Qantas.
After the Federal Court threw out an appeal by Qantas against the original ruling that it had made the decision to sack the workers and outsource the jobs to prevent industrial action, the union sought a ruling for the workers to be reinstated.
That action failed with the court ruling in 2021 that reinstatement was not appropriate, although compensation should be considered.
In a statement last night, Qantas said: "This matter centres around Qantas’ ability to legally outsource a part of its business to save more than $100 million a year at a time when the airline’s survival was not assured."
"While the Federal Court accepted that we had lawful and compelling commercial reasons for making the outsourcing decision, it was not convinced that preventing protected industrial action in 2021 was not relevant in the decision to outsource," it said.
"We have always rejected this, which is why [we] are taking our appeal to the High Court.
"We've always acknowledged that it would have been very tough on our ground handlers and the thousands of other employees who lost jobs because of the pandemic."
So far no money has been paid to the workers, as all those involved wait for the outcome of the High Court proceedings.
The case will run over two days.
